A 1995 Constitutional Convention

The framers of the second Michigan Constitution, having the wisdom to know that the state’s governmental needs would change over time, included in that document a provision to ensure that every 16 years the state’s voters would have the opportunity to call a convention to rewrite it. The provision has endures through subsequent constitutional revisions, and in November 1994 the “con-con” question will be presented again—as Proposal A. This Advisor presents the history of Michigan’s various constitutions and the conventions that framed them and considers the possibility of holding another convention in 1995.

Introduction

The Michigan Constitution establishes the relationship between the people of the state and their governance. The state’s current governing instrument, unlike the U.S. Constitution and its simple eloquence, is complex: It has 12 articles, which range from 7 to 53 sections, and it sets forth in detail the form and function of our local and state governments, finance, taxation, public schooling, and other government services.

The current constitution was adopted by state voters in 1963. It was written in the constitutional convention of 1961–62 by 144 elected delegates; 17 amendments subsequently have been adopted by voters. Michigan, like the country and the rest of the world, has undergone significant change during the past three decades—technology, demographics, economic conditions, environmental quality, competitiveness, and many other factors affect us—and indeed, the pace of change seems to be accelerating. Has our state constitution kept up? Are there reasons to open it?

The Early Years

The nation’s constitution has not been overhauled since it was adopted more than 200 years ago, but the people of Michigan have adopted four state governing instruments—in 1835, 1850, 1908, and 1963—and rejected two others. The first was written while Michigan still was a territory.

1835

The first constitutional convention, in 1835, assembled at Detroit, the territorial capitol, to set forth the governance of the territory and to exert pressure on Congress to admit Michigan to the union. Acting Governor Stevens T. Mason was using the forceful technique that had brought Tennessee success: The territory would demand statehood based on the establishment of a constitution.

Governor Mason already had ordered a census to confirm that the Michigan territory’s population had, at 90,000, surpassed the 60,000 mark that was a Congressional prerequisite for admission, and 91 delegates, a majority of whom were Democrats, were elected by residents of the territory to produce Michigan’s first constitution.

The delegates completed their mission within 45 days . Patterned on the constitutions of other states, Michigan’s included a “bill of rights” as well as provisions for gubernatorial terms (two years), school finance, and infrastructure improvements. The issue most contested in the convention was who would have the right to vote. Despite some opposition, the delegates decided with a growing number of states to enfranchise all white males over age 21, whether or not they owned property. The 1835 constitution provided that only the governor and lieutenant governor would be elected statewide and the only other state officers elected would be legislators. The legislature was given broad authority.

This constitution was farsighted in many ways. It proclaimed that the legislature should encourage “the promotion of intellectual, scientifical, and agricultural improvement.” It was the first in which the state school superintendent was made an appointed position and thus preclude the office from abolition by the legislature. It also provided for a permanent primary school fund to ensure public finance of education, and it set a precedent of earmarking state revenues for certain purposes. The work of the 91 men, before Michigan was a state, is considered by many political scholars to be the best of Michigan’s constitutions.

The 1835 constitution was adopted by 6:1, and Mason—whose strategy assisted in Michigan’s being granted statehood on January 26, 1837—went on to win election as Michigan’s first governor (and its youngest ever—he was only in his 20s).

1850

After little more than a decade, there was a movement to discard Michigan’s infant constitution. The swell of popular support for change was rooted in the new Jacksonian democracy, the key tenets of which included the notions that public officials should be chosen by election rather than appointment, the power of the legislature should be limited, and special acts of incorporation should not be allowed.

The Michigan Legislature bowed to the popular sentiment and placed the issue of calling a constitutional convention on the statewide ballot in 1849, and voters approved it. The 100 delegates to the 1850 convention met for slightly more than two months. The new document instituted the long ballot: Supreme court justices and key state administrative officers (secretary of state, treasurer, attorney general, superintendent of public education, University of Michigan regents, and state board of education members) now would achieve their offices by election. It radically altered the judicial system and created circuit courts. In addition, it extended the term of legislators from one to two years and dramatically restrained legislative action, including curbing that branch’s power to spend and borrow. Moreover, the designers of the 1850 constitution were way ahead of their time in limiting terms, stating that sheriffs (counties’ highest officeholders) were “incapable of holding the office . . . longer than four in any period of six years.” Not until a 1992 constitutional amendment did the terms of other offices become subject to limits.

The 1850 constitution was adopted by Michigan citizens by nearly 4:1. Because it brought about Michigan’s long ballot and imposed many mandates, many historians consider this constitution to be Michigan’s worst.

1866 and 1874

One of the 1850 constitution’s mandates was that the question of whether to convene a constitutional convention automatically would be put to voters every 16 years, and in 1866 the voters approved calling a “con con.” The assemblage’s product included two controversial provisions: salary increases for state officers and circuit court judges and suffrage for blacks. This constitution was rejected by voters. A second revision failed in 1874.

1904 and 1907

Although in 1904 voters had rejected the automatic question on calling a constitutional convention, in 1906 supporters of a convention convinced the electorate that a constitution created during the turbulence of the mid-1800s was not suitable to guide the state in the 20th century. In October 1907, 96 con-con delegates assembled in Lansing.

The progressive movement had garnered the support for a constitutional convention, but the GOP dominated the body (all but eight delegates were Republicans), and they withstood the Progressives’ push for change. Women’s suffrage was denied, although female taxpayers were granted the vote on issues dealing with the expenditure of money. Some restrictions on the legislature were removed, but the majority remained. In the end, the 1908 constitution was essentially the same as its predecessor, and it was approved nearly 2:1.

1926, 1942, 1948, and 1958

In conformance with the enduring requirement to present the con-con question automatically every 16 years, in 1926 and 1942 the voters were asked if they wished a constitutional convention to be convened, and they declined. In 1948, however, responding to growing interest in constitutional reform, the legislature placed the issue on the ballot, and although it was approved by a slim margin of those voting on the question, the proposal was defeated because it lacked a majority of all those casting ballots in the election. The result was the same in 1958.

Modern Times

1963 Constitution

By the early 1960s several factors had converged to create support for calling a constitutional convention. The state’s lingering fiscal woes, a widening rift between the executive and legislative branches, and growing controversy over legislative apportionment led many to think that the only way to jolt the system was to tinker with its foundation. The apportionment problem reflected Michigan’s economic and population shifts during the decades since the 1908 constitution had been adopted; under its provisions the basis for drawing legislative districts favored outstate areas, reflecting Michigan’s once rural economy and orientation, but by 1960 the now-populous urban areas, particularly Detroit, wanted a bigger voice.

The League of Women Voters and the Junior Chamber of Commerce led the effort to draw up a new constitution. These groups spearheaded the gathering of enough signatures to place a two-phase question on the 1960 ballot: (1) The first part would amend the constitution so that approval by only a majority of those voting on the question would be required for passage of a con-con proposal, and (2) the second part would place the con-con question on the ballot the following April. The measure passed, and the campaign began—with the assistance of other groups, including George Romney’s Citizens for Michigan—to achieve passage of the con-con question now on the April 1961 ballot.

In April 1961 the call for a constitutional convention was narrowly approved (by 51 percent). In September voters went back to the polls to elect 144 constitution delegates, one from each existing state house and senate district. The delegation’s partisan split was wide: 99 Republicans and 45 Democrats. By comparison, the partisan makeup of the 1961–62 legislature was 78 Republicans and 66 Democrats; the lopsided representation to the convention reflected the public’s conservative approach to reworking its constitution and to legislative reapportionment.

The legislature, dominated by outstate representation who feared that a constitutional rewrite would diminish their power, failed to appropriate funds to hold the convention, but the W.K. Kellogg Foundation stepped forward with a grant, and the 1963 constitutional convention began deliberations.

The delegates to the 1963 con con—hailed as one of the seminal events in modern Michigan political history because the delegation fostered a new generation of political leaders, among them Richard Austin, William Ford, George Romney, and Coleman Young—dealt with several important issues. The document they framed guarantees equal protection of the law and prohibits discrimination based on religion, race, color, or national origin. It bans the death penalty, limits the number of state departments to 20, prohibits a graduated income tax, and sets out state government’s responsibility for public community and junior colleges. It establishes four-year terms of office for the governor and lieutenant governor, bestows considerable autonomy on local units of government, and limits property assessment for tax purposes to no more than 50 percent of true cash value.

In 1963 Michigan voters approved the new constitution by a slim margin—7,000 votes. Although the new constitution was not the panacea for which some had hoped, it did update the powers and principles necessary to organize and operate the industrial state Michigan had become.

1978 Ballot Question

In 1978 the question of whether to hold a constitutional convention was defeated 3:1.

A 1995 Con Con?

If this November the majority of the people voting decide that a constitutional rewrite would be in the best interest of the state, next spring 148 delegates would be elected (one from each house and senate district), and the 1995 constitutional convention probably would convene by October.

The trends of the past can help us predict how a 1995 constitutional convention would look. Historically, conservatives have dominated the conventions, reflecting citizen concern about radically revamping the state’s governing document. I see no reason to believe that 1995 would be vastly different.

The convention probably would last nearly a year. Each past assemblage has been longer than the one before, and it can be expected that today’s myriad issues and interest groups would dictate a slower pace than in the past. The anticipated length of the convention would be a factor in the makeup of the delegation. Anyone elected must have the liberty to set aside other employment or commitments to work full time on the constitution for approximately the year required. Some observers feel that this factor will exclude people of limited means and/or occupations from which a year’s leave is not possible; others point out that it also means that because many delegates would be people who can afford to subsidize their own involvement (such as attorneys and other professionals), they also would be well educated.

A 1995 constitutional convention would be Michigan’s political event of the decade. The issues taken up would range from such lightning rods such as reproductive rights and assisted suicide to term limits and the structure of local government. (In June we will publish an Advisor on specific issues that a 1995 constitutional convention might address). With every issue would come groups fighting to institutionalize their point of view. As in the 1963 convention, those who successfully build consensus undoubtedly would become leaders in the next generation of the state’s political leadership.

If the coming constitutional convention ballot question follows the pattern of the others, little attention or thought will be given it unless credible special interest groups work vigorously in its support. To pass it, voters will have to be convinced that the risks of maintaining the status quo outweigh the potential downside of new principles or directions that may emerge. This is a delicate balance, and only grassroots support will tip the scales toward change.

The key question is, of course, is it in Michigan’s best interest to reevaluate our governing instrument? Is a constitution rooted in the 1850s and revised during the 1960s sufficient to carry Michigan into a new millennium? This is the question voters must answer in November.

In all likelihood the ballot issue will fail. Trust in public institutions is at an all-time low, and I doubt if voters will have the confidence to allow the constitution to be opened and changed. Yet, by its appearance on the ballot, the question will be raised in the mind of the electorate about the sufficiency of the current document. Voters will weigh their interests and the options, and if the scales appear to be beginning to tip toward revision, activists will push, and the call of a constitutional convention eventually could become a reality.

The historical portions of this article were drawn from Michigan: A History of the Wolverine State, by Willis F. Dunbar and revised by George S. May, and also from relevant historical documents. The conclusions are the author’s.